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You are here: BAILII >> Databases >> England and Wales Land Registry Adjudicator >> Phillips & Ors v Vaughan (Miscellaneous cases : Miscellaneous) [2016] EWLandRA 2014_0497 (04 March 2016)
URL: http://www.bailii.org/ew/cases/EWLandRA/2016/2014_0497.html
Cite as: [2016] EWLandRA 2014_497, [2016] EWLandRA 2014_0497

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REF/2014/0497

 

PROPERTY CHAMBER

FIRST-TIER TRIBUNAL

LAND REGISTRATION DIVISION

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

BETWEEN

(1)    CLAYTON DAVID PHILLIPS

(2)    ADAM NICHOLAS PHILLIPS

(3)    SIMON JOHN PHILLIPS

(as Executors of the estate of Carol Ann Phillips)

 

APPLICANTS

 

and

 

TREVOR JOHN VAUGHAN

 

RESPONDENT

 

Property Address: Land on the west side of The Hollies, Bodenham, Hereford, HR1 3JT

Title Number: HE48870

Before: Judge Malcolm Sheehan QC

Sitting at: Worcester Magistrates Court, Castle Street, Worcester, WR1 3QZ

On: 22 April 2005 and 11 & 12 January 2016

 

Applicants Representation: In person

Respondent Representation: In person

 

 

DECISION

_________________________________________________________________________


 

KEYWORDS Application to close registered title by documentary title owners/ first registration of possessory title based on adverse possession/ Whether factual and mental elements of adverse possession established/ Whether the occupation was with consent/ Whether witness statements made by their apparent author/ whether a witness offered an inducement to give evidence/ Whether a further adjournment of proceedings to facilitate a third opportunity to obtain handwriting evidence should be granted

 

CASES REFERRED TO: Baxter v Manion [2011] EWCA Civ 120, J A Pye (Oxford) Ltd v Graham [2002] UKHL 30, Powell v McFarlane (1979) 38 P&CR 452, Bligh v Martin [1968] 1 WLR 804, Buckinghamshire County Council v Moran (1988) 86 LGR 472, J Alston & Sons Ltd v BOCM Pauls Ltd [2008] EWHC 3310 (Ch), Secretary of State for the Home Department v Rehman [2001] UKHL 47, J Browne Construction Company Ltd v Chapman Construction Services [2016] EWHC 152 (QB), Ashe v National Westminster Bank [2008] EWCA Civ 55

 

LEGISLATION REFERRED TO: Sections 15 and 17, Limitation Act 1980, Sections 11(7) and 65 and Schedules 4 and 6, Land Registration Act 2002

 

Decision

  1. For the reasons set out herein I direct that the Chief Land Registrar shall give effect to the Applicant's application dated 15 October 2013 as if the Respondent's objection had not been made.

 

The Reference

 

  1. I am concerned with an application dated 15 October 2013 made by three brothers, Mr Clayton, Adam and Simon Phillips (collectively "the Applicants") who are the personal representatives of the estate of their late mother Carol Ann Phillips. The application concerns land ("the Land") on the west side of the property known as The Hollies, Bodenham, Hereford, HR1 3JT. The Land is registered with HM Land Registry under title number HE48870 and was first registered in 13 March 2013.

 

  1. By their application the Applicants apply to close title HE48870. The application is objected to by the current registered proprietor of the Land Mr Trevor Vaughan ("the Respondent"). In March 2013 Mr Vaughan became the first registered proprietor of the land. He was registered as proprietor of the Land with a possessory title having applied to the Land Registry to be registered as proprietor on the basis that the Land had been abandoned by the documentary title owners and occupied and maintained by him continuously and without interruption since the winter of 2000/2001.

 

  1. The Applicants assert that they are the current documentary title owners and they dispute that the Respondent's actions in relation to the land have led to the extinguishment of their title. They deny that the Respondent was entitled to apply for first registration of the Land on the basis of adverse possession. The application has been referred to the First-tier Tribunal by the Chief Land Registrar pursuant to s.73(3) of the Land Registration Act 2002.

 

The Statements of Case

 

  1. The Applicants' Statement of Case was received by the Tribunal on 11 August 2014. It lacked the necessary statement of truth and a further version with a statement of truth was received on 25 August 2015. The Applicants' case is that since the death of their mother the late Carol Phillips on 5 March 2006 they have been the owners of the Land.

 

  1. As stated above, the Applicants refute that the Respondent had been in possession of the Land for 12 years prior to his application for first registration. The Applicants have provided statements, statutory declarations and documents in support of their position that are summarised where relevant later in this judgment.

 

  1. The Respondent's Statement of Case was received by the Tribunal on 3 November 2014. In it the Respondent alleges that:

 

7.1       He first occupied the Land in the winter of 2000/1 when a retired shepherd Mr Sid Pattison informed him that he had sheep on the Land previously but no longer had any sheep and the Land was unoccupied and vacant;

7.2       In the winter of 2000/1 the field was very overgrown with brambles and other weeds and that he employed a local contractor Mr Linton to remove the weeds and spray them;

7.3       In approximately 2006 he paid a fencing contractor to replace the fence on the Land alongside the road to Bodenham;

7.4       He paid for fencing contractors to reduce the height of the roadside hedge and remove the debris;

7.5       The he registered the Land with the Rural Payments Agency in 2008 and claimed single farm payments in respect of it until 2011;

7.6       That from the winter of 2000/1 until his application for first registration no one had ever challenged his right to be on the land and that he considers that the Land had been abandoned by the Phillips family.

 

  1. The Respondent also provided statements, statutory declarations and documents with his Statement of Case in support of his position. These are summarised where relevant later in this judgment. The Respondent filed a further Statement of Case dated 28 November 2014 addressing a period when he was bankrupt, as detailed further below. He states that he considers that his period of bankruptcy is irrelevant to the dispute as "I never stopped breeding and keeping sheep, and although most of my flock were sold, I was allowed by the trustee, Mr Walker to retain 3 sheep that could not be taken to market. Furthermore within 2 weeks of my sheep being sold I purchased a number to restart my flock."

 

The Relevant Law

 

  1. There is no dispute that prior to March 2013 the Land was unregistered. Section 15(1) of the Limitation Act 1980 applies in relation to unregistered land and provides:

 

"No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person."

 

  1. Section 17 of the Limitation Act 1980 provides:

 

"Subject toŚ

(a) section 18 of this Act. . .

(b) . .

at the expiration of the period prescribed by this Act for any person to bring an action to recover land (including a redemption action) the title of that person to the land shall be extinguished"

 

  1. The effect of these sections is that when an owner is put out of possession of their land they have 12 years within which to bring an action to recover their land, failing which their title to the land is extinguished. In his application to the Land Registry for first registration of the Land the Respondent stated that he had been in exclusive possession of the Land for more than 12 years.

 

  1. The Land Registry gave effect to the Respondent's application and registered him with possessor title. It was held by the Court of Appeal in Baxter v Manion [2011] EWCA Civ 120 that the Tribunal has jurisdiction under s. 65 and Schedule 4 to the Land Registration Act 2002 ("the 2002 Act") to alter the register to rectify a mistake provided certain conditions are fulfilled. This allowed the Tribunal to find that the registration of title of a squatter was a mistake and that the documentary title owner should be the registered proprietor.

 

  1. However it is my view that the learned authors of A Practical Guide to Land Registration Proceedings are correct when they state at paragraph 22.7 that "where a squatter has obtained a possessory title (as opposed to an absolute title as happened in Baxter v Manion) and the paper title owner seeks to close it on the basis that his title has not been extinguished, he will not be correcting a mistake but giving effect to any estate, right or interest excepted from the effect of registration" as provided for in section 11(7) of the 2002 Act.

 

  1. Section 11(7) of the 2002 Act states:

 

"Registration with possessory title has the same effect as registration with absolute title, except that it does not affect the enforcement of any estate, right or interest adverse to, or in derogation of, the proprietor's title subsisting at the time of registration or then capable of arising ."

 

  1. It is therefore my view that because the Respondent was registered with possessory title rather than absolute title the Applicants are entitled to pursue their application to close the Respondent's registered title without the need to rely on the provisions of Schedules 4 and 6 to the 2002 Act. As the parties were not legally represented and were not able to address me on this point I will also consider the application on the alternative basis that the conditions set out in paragraph 6 of Schedule 4 to the 2002 Act apply.

  1. The physical and mental components of adverse possession are set out in the House of Lords decision in J A Pye (Oxford) Ltd v Graham [2002] UKHL 30. In summary a party claiming adverse possession must show that during the relevant period:

 

16.1   That he had factual possession of the land claimed;

16.2   That he had the necessary intention to possess the land; and

16.3   That he did not possess the land with the owner's consent.

 

  1. The description of factual possession of land set out by Slade J in Powell v McFarlane (1979) 38 P&CR 452 was approved in J A Pye (Oxford) Ltd v Graham. Slade J stated:

 

"Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession ... Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question of what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so."

  1. The essence of factual possession is exclusive physical control of the relevant land. The possession must be sufficiently indefinite and permanent to amount in law to possession rather than to a temporary user. For possession to be exclusive it does not require that the relevant land is used continually. In Bligh v Martin [1968] 1 WLR 804 Pennycuick J held that:

 

"possession may continue to subsist notwithstanding that there are intervals , and sometimes long intervals, between the acts of user ... In the case of farmland, this must habitually be the position; for example, as regards arable farm land during the winter months."

 

  1. In relation to the necessary intention required on the part of the party claiming adverse possession, it is important to note that the intention required relates to possession of the land. In Buckinghamshire County Council v Moran (1988) 86 LGR 472 Hoffman J stated that the intention required was "not an intention to own or even an intention to acquire title but an intention to possess". This formulation was approved in J A Pye (Oxford) Ltd v Graham. The intention required is, in one's own name and on one's own behalf, to exclude the world at large, including the owner with paper title, so far as reasonably practicable and so far as the processes of law will allow.

 

  1. In many cases the establishment that there has been the required factual possession of the land will be sufficient to prove that the possessor had the relevant intention. In J A Pye (Oxford) Ltd v Graham Lord Browne-Wilkinson stated:

 

"if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter does not conflict with that use, that may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner. For myself I think there will be few occasions in which such inference could be properly drawn in cases where the true owner has been physically excluded from the land"

 

  1. In J Alston & Sons Ltd v BOCM Pauls Ltd [2008] EWHC 3310 (Ch) it was held that there was no requirement that the adverse possessor had to have an intention to infringe the true owner's rights. Thus the relevant mental element of adverse possession could be established even where the possessor accepted that he would have vacated the land if asked to do so by the documentary title owner.

 

  1. Possession cannot be said to be adverse if it is with the owner's consent. In Buckinghamshire County Council v Moran [1990] Ch 628 Slade LJ stated

 

"Possession is never "adverse" within the meaning of the 1980 Act if it is enjoyed under a lawful title. If, therefore, a person occupies or uses land by licence of the owner with the paper title and his licence has not been duly determined, he cannot be treated as having been in "adverse possession" as against the owner of the paper title".

 

  1. Permissory user can be established by evidence that there was an agreement permitting use of the land or permission can, in certain circumstances, be implied. The circumstances in necessary to establish an implied permission are the subject of some legal controversy as set discussed in paragraphs 112-141 of J Alston & Sons Ltd v BOCM Pauls Ltd.

 

  1. As already noted, the Respondent was declared bankrupt for a time during part of the period he relies on in order to establish adverse possession. At paragraph 15-27 of Adverse Possession by Jourdan & Radley-Gardner it is stated that the bankruptcy of a squatter will not affect the running of time against a documentary title owner that has been put out of possession. In Ashe v National Westminster Bank [2008] EWCA Civ 55 the Court of Appeal held tha time continued to run against a mortgagee notwithstanding the bankruptcy of one of the occupying borrowers.

  1. Given the serious allegations that are described below in relation to witness evidence it is also appropriate to remind myself of the relevant standard of proof. While previous case law has suggested that there is a flexible standard of proof depending on the seriousness of the allegations. in Secretary of State for the Home Department v Rehman [2001] UKHL 47 Lord Hoffman stated that:

 

"I feel bound to say that I think that a "high civil balance of probabilities" is an unfortunate mixed metaphor. The civil standard of proof always means more likely than not. The only higher degree of probability required by the law is the criminal standard. But, as Lord Nicholls of Birkenhead explained in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 586, some things are inherently more likely than others."

 

  1. It is also appropriate for me to direct myself that where a finding is made that a party has fabricated a document in support of their position in litigation it remains necessary to assess all relevant evidence in reaching judicial conclusions. For example, in the case of J Browne Construction Company Ltd v Chapman Construction Services [2016] EWHC 152 (QB) it was held that documents had been fabricated after the dispute arose. Her Honour Judge Taylor none the less found that the content of the fabricated documents was broadly accurate and that they had been fabricated "in a misguided and wrongful attempt to meet allegations of fraud" which were considered unjustified.

 

History of the Proceedings

 

  1. These proceedings have had a difficult history and because of the serious nature of some of the allegations made during the proceedings it is appropriate to set out aspects of the procedural history in this Decision.

  1. From the outset of these proceedings each of the parties has made allegations about the conduct of the other(s). There have been persistent allegations and denials concerning the failure to serve documents.

 

  1. There have also been allegations about interference with witnesses or those related to parties to the proceedings. The Respondent alleges that several individuals who provided witness statement evidence in support of his case received "harassing calls from a woman who must have had knowledge of this case". This allegation was first made in an email to the Tribunal dated 11 September 2014.

 

  1. The Applicants have provided an email from Ms Crysta Phillips, the former wife of one of the Applicants Mr Adam Phillips, alleging that the Respondent had intimidated her at her home causing her to call the police. The Respondent has provided a statement from a Mr Martin Lewis alleging that he was abused by a woman while attempting to serve documents on what he understood to be Mr Adam Phillips' address. I have not heard direct evidence from the persons alleged to have been the subject of this conduct and in the circumstances do not consider it necessary or appropriate to make findings in respect of them.

 

  1. Most seriously, on 17 April 2015, less than a week prior to the first hearing date the Applicants wrote to the Tribunal enclosing a letter from a Mr Lee Watson dated 8 April 2015. The Respondent had previously provided to the Tribunal a statement dated 22 July 2013 and a statutory declaration dated 21 January 2015 from a Mr Lea Watson. In his 8 April letter Mr Lee Watson made serious allegations against the Respondent. He stated that he had not made either of the statements provided to the Tribunal by the Respondent and that the signatures on the statements filed by the Respondent were not his. He also stated that the Respondent had offered him £5,000 to support his case and say that the Respondent had been occupying the Land since 2000-1 whereas Mr Watson stated that the Respondent's usage started in 2006 and that the usage was with the permission of a Mr Sid Pattison who in turn had permission from the then owner of the Land the late Mrs Phillips.

 

  1. On 16 April 2015 the Respondent wrote to the Tribunal alleging that his own trial bundle had disappeared from his house the previous day and that he had called the police. The Respondent has alleged that Mr Watson was at his house at around the time that his trial bundle went missing. On 19 April 2015 the Respondent wrote to the Tribunal indicating that he wished to obtain expert handwriting evidence in respect of Mr Watson's signature in light of the allegations that had been made against him. On 21 April 2015 the Tribunal wrote to the parties informing them that the Tribunal's permission would be required for expert handwriting evidence to be adduced.

 

  1. At the hearing on 22 April 2015 I heard evidence from Mr Darren Roberts, Mr Graham Mitchell, Ms Judith Mabe and Mr Brian Watts. This evidence is dealt with below. Mr Lee Watson also attended as a witness for the Applicants. The Respondent confirmed that the individual in attendance was the same Mr Watson that he maintains had previously provided statements in support of his claim to the Land notwithstanding the different spelling of his first name. The Applicants applied for permission to adduce Mr Watson's 8 April 2015 letter and to call Mr Watson as a witness. The Respondent did not object on the basis that he wished to challenge Mr Watson's evidence and accordingly I granted permission to the Applicants to call Mr Watson.

 

  1. The Respondent then applied for permission to adduce expert handwriting evidence in respect of the signatures to the various statements attributed to Mr Watson. The Respondent wished to establish that the signatures to the documents he had provided to the court were Mr Watson's signatures rather than forged signatures as Mr Watson alleged. I heard submissions from the Applicants and Respondents. The Applicants did not object to the Respondent's application even though it would necessarily lead to an adjournment of the proceedings. I gave a judgment granting the Respondent's application for permission to obtain expert evidence. The second day of the hearing was vacated and the hearing of the reference adjourned to a date to be fixed.

 

  1. I explained to the parties that if they wished to call expert evidence they would have to identify a suitable expert, instruct that expert and pay for the services of the expert selected. They confirmed that they understood that it was their responsibility to instruct an expert should they wish to rely on such evidence.

 

  1. At hearing I took the opportunity to explain to the parties, who acted in person, the importance of calling the witnesses whose evidence they wished to rely on to give oral evidence at the adjourned hearing. I explained to the parties that an important part of the trial process was giving the Tribunal an opportunity to hear the evidence of witnesses tested by questioning. This allowed the Tribunal to form views on the reliability of the evidence given to an extent that is not possible where witness statements are proffered but the witnesses do not give oral evidence.

 

  1. In giving permission to obtain expert evidence I stated that the permission was conditional upon the parties complying with the terms of the permission. These were set out in the Order of the Tribunal dated 29 April 2015. One of the terms of the permission was that the parties inform the Tribunal by no later than 20 May 2015 whether they had instructed a handwriting expert and, if so, state which expert had been instructed. Any party complying with that condition was ordered to serve an expert report by 15 July 2015. The 29 April 2015 Order provided that the hearing would be re-listed in the period 3 August 2015 - 30 October 2015.

 

  1. In a letter dated 11 May 2015 the Respondent informed the Tribunal that he had been was arrested on suspicion of perverting the course of justice following the allegations made by Mr Watson described above. He also stated that he understood that "the police will now be doing handwriting checks on the signatures of Lea (Lee) Watson".

 

  1. The Tribunal responded to the Respondent by a 20 May letter stating that "the Order made by the court following the hearing on 22 April 2015 remains in effect and the parties continue to be bound by its terms". The Respondent was therefore clearly informed that notwithstanding his informing the Tribunal that the police would be carrying out "handwriting checks" the permission for parties to adduce expert handwriting evidence remained as set out in the 29 April 2015 Order.

 

  1. On 20 May 2015 the Applicants provided samples of Mr Watson's signature and informed the Tribunal that the Applicants would not be obtaining expert evidence of a handwriting expert.

 

  1. On 30 May the Respondent wrote to the Tribunal indicating that he did not consider that the samples of Mr Watson's signature that had been obtained were sufficiently historic and requested that further samples be obtained. This letter was written 10 days after the date on which the Respondent was obliged, under the 29 April 2015 Order, to inform the court whether he intended to instruct and expert and, if so, who was being instructed.

 

  1. Although the Respondent was in breach of the terms of the 29 April 2015 Order the Tribunal gave the Respondent a further opportunity to apply to adduce expert handwriting evidence. By a letter dated 10 June 2015 the Respondent was informed that any further such application should be made by 23 June 2015. The 10 June 2015 direction provided that "any further application" by the Respondent for permission to adduce expert handwriting evidence should be supported by a letter addressed to the Tribunal from the expert instructed setting out their qualifications and confirming that they had accepted instructions to act. The application was also required to set out any reasons relied on as to why the Respondent has not complied with the Order of 29 April 2015.

 

  1. On 11 June 2015 the Respondent wrote to the Tribunal simply re-stating his understanding that the police would be carrying out handwriting checks. The Respondent also asked the Tribunal to note that the Applicants had not sought to obtain handwriting evidence despite having commented on the similarity between signatures on statements provided to the Tribunal by the Respondent. The Respondent did not make a further application to adduce handwriting evidence as provided for in the 10 June 2015 direction.

 

  1. On 28 July 2015 the parties were ordered to set out any objections to the adjourned hearing being relisted by 18 August 2015. On 8 August the Respondent wrote stating his understanding that the police investigation "is going to take a considerable time" and that the police would not obtain handwriting evidence "until they had checked my computers and phone, which would probably not be done until autumn". The Respondent stated that he expected Mr Watson and Mr Adam Philips would be charged with conspiracy in relation to the statement provided to the Tribunal on 14 April 2015. The Respondent invited the Tribunal not to relist the hearing "until the police and Courts decide who was trying to pervert the course of justice" but he acknowledged that the Tribunal may none the less resume the adjourned hearing before the outcome of the criminal investigation was known. After considering the representations of the parties the adjourned hearing was re-listed for 11 and 12 January 2015, almost 9 months after the initial hearing.

 

  1. On 19 November the Respondent wrote to the Tribunal stating that he had been informed by the police that it had been determined that it would not be in the public interest to prosecute him and that the police had not obtained handwriting evidence. Notwithstanding the Tribunal's 10 June 2015 direction that " any further application" to adduce expert handwriting evidence must be made by 23 June 2015 the Respondent included in his letter of 19 November, almost five months later, a further request for permission to instruct a handwriting expert. The Respondent attached a CV from a Ms Kate Barr who was described as being the first person to respond to an internet query raised by the Respondent. The Tribunal invited representations in respect of this application by 7 December 2015.

  1. On 4 December 2015 the Respondent wrote to the Tribunal stating that he had not complied with the Order of 29 April because of his arrest and because the police had informed him that they would obtain a handwriting expert. The Respondent stated that he assumed that the Tribunal would give him permission to rely on handwriting expert evidence. This submission was made notwithstanding the opportunities already given to the Respondent to do so.

 

  1. The Respondent's application was considered on paper by Judge Andrew who made an Order on 10 December 2015 refusing the Respondent's application to adduce expert handwriting evidence. The Order sets out Judge Andrew's reasons for refusing the application and these include his finding that the Respondent had already been given every reasonably opportunity to adduce expert handwriting evidence and his holding that allowing the application would inevitably result in a postponement of the adjourned hearing and the use of disproportionate court resources.

 

  1. In a letter dated 18 December 2015 the Respondent stated his disagreement with Judge Andrew's Order. He stated, amongst other things, "why should I consult an expert when the police had informed me they would be doing so?" The Respondent denied that he had been given every reasonable opportunity to adduce expert handwriting evidence.

 

  1. In an email dated 22 December 2015 the Applicants disputed the Respondent's account and stated that "at no time did the police guarantee Mr Vaughan that they would be using a handwriting specialist, they would only use one if they felt necessary". In a further email dated 23 December 2015 the Respondent insisted that he had been led to believe by the police that they would obtain handwriting evidence.

 

  1. At the resumed hearing on 11 January 2016 I gave the Respondent a further opportunity to make an application for permission to adduce expert handwriting evidence pursuant to Rule 7(7) of the Tribunal Procedure (First-tier Tribunal)(Property Chamber) Rules 2013. The Respondent restated his reasons set out in correspondence and summarised above in support of his application. The Applicants were also given the opportunity to address me and indicated that they opposed the grant of permission given the delay that this would cause to the proceedings and the opportunity already afforded to the Respondent.

 

  1. I gave an oral judgment at the hearing and refused the Respondent permission to rely on expert handwriting evidence. My reasons were as stated at the hearing but in summary I held that:

 

51.1   .The Respondent had been given a more than reasonable opportunity to instruct a handwriting expert;

51.2   The Respondent's stated belief that the police were carrying out "handwriting checks" was not an adequate reason for non-compliance with the Orders of 29 April 2015 and 10 June 2015;

51.3   When the Respondent first informed the Tribunal that the police were carrying out handwriting checks he was informed by the Tribunal that the requirements of the 29 April Order remained in effect. The Respondent was therefore aware that police handwriting investigations did not affect the requirements of the permission to obtain expert evidence as set out in the Order;

51.4   The proceedings were not adjourned on 22 April 2015 to enable the police to obtain handwriting expert evidence but to allow whichever of the parties chose to do so the opportunity to instruct an expert. The requirements of instructing an expert were clearly explained to the parties;

51.5   The Respondent was given two opportunities to comply with orders permitting him to call expert evidence. The 10 June 2015 direction expressly provided that "any further application" must be made by 23 June 2015. The Respondent failed to comply with either order. The Respondent being under police investigation is not a sufficient reason for non-compliance.

51.6   The Respondent was informed at the 22 April 2015 hearing and by the terms of the 29 April 2015 Order that the hearing would be re-listed in the period 3 August 2015 - 30 October 2015. It was therefore clear that the case may resume before the police investigation concluded and that any police evidence relating to handwriting may not be available at the resumed hearing. Even were it available an application to adduce such evidence would have to be made and its outcome would be uncertain.

51.7   The Respondent did not make his further application for permission to adduce expert handwriting evidence until almost five months after the deadline set by the 10 June 2015 Order.

51.8   Allowing the Respondent to adduce expert handwriting evidence would inevitably mean adjourning the proceedings again. While the Respondent described this as being likely to cause a delay of a month or two the reality of court availability and listing is that the further delay would be significantly greater than that. Such further delay would not be in accordance with the overriding objective set out in Rule 3 of the Tribunal Procedure (First-tier Tribunal)(Property Chamber) Rules 2013 as it would not avoid delay and would not deal with the case proportionately to the resources of the parties and the Tribunal;

51.9   The proceedings had already been adjourned for a period that turned out to be almost 9 months in order to allow the Respondent to obtain expert handwriting evidence.

 

  1. Accordingly I have determined the dispute about Mr Watson's signatures without handwriting expert evidence but with the benefit of hearing oral evidence from both Mr Watson and the Respondent and after considering other evidence relavant to their honesty.

 

Undisputed Matters

 

  1. There are a number of relevant matters that are not in dispute between the parties. The Land is comprised of a field bounded by hedges and fences with access via a gate. The parties agree that the extent of the Land is as shown edged red on the title plan to the registered title.

 

  1. Subject to the question of the Respondent's claim to have acquired title by adverse possession the relevant ownership history of the Land is not in dispute. By a conveyance of unregistered land dated 15 May 1986 ("the 1986 conveyance") the late Mrs Carol Ann Phillips and her late husband Mr David Anthony Phillips became the freehold owners of two parcels of the land. The first is described in the conveyance as the "messuage or dwellinghouse called "The Hollies" with the building garden and land thereunto adjoining and belonging situate in the Village and Parish of Bodenham in the County of Hereford and Worcester comprising 1.744 acres of thereabout being field numbers 484 and 485on the Ordnance Survey map for the said Parish"

 

  1. The conveyance refers to the first parcel of land being shown coloured pink on a plan which formed part of an earlier conveyance of the property dated 25 September 1918. This plan shows that the first parcel included part of the Land along with other land on which The Hollies dwellinghouse is erected and surrounding land which is not the subject of the current dispute.

 

  1. The second parcel of land referred to in the 1986 conveyance is shown on a plan forming part of a prior conveyance dated 19 December 1947. This second parcel forms the northern part of the Land.

 

  1. The Hollies dwellinghouse and the land immediately surrounding it was sold by the late Mrs Phillips in 1998/9 but the Land did not form part of the sale.

 

  1. The Applicants have produced a copy of a grant of probate dated 11 August 2006 confirming that they are the executors of their late mother's estate. They have also produced a copy of their late mother's will that names them as the residuary beneficiaries of the estate after some limited gifts are made to third parties. Included in the Schedule of Assets and Liabilities of the estate of the late Mrs Phillips is "Land: 2 acres adjacent to The Hollies, Bodenham" which was valued at the time at £8,000. A later letter suggests that this valuation may have been revised upwards subsequently by the Inland Revenue.

 

  1. It is accordingly not in dispute that, subject to the Respondent's adverse possession claim, the Applicants are the documentary title holders of the Land.

 

The Evidence

 

Documentary Evidence

 

  1. There is a limited amount of relevant documentary evidence in this case other than the witness statements and statutory declarations that I discuss below. I have been provided with proof that the Respondent was declared bankrupt by the Hereford County Court on 4 June 2007 and that a Mr Douglas Walker was appointed his trustee in bankruptcy. The Respondent has produced a letter from the Insolvency Service stating that he was discharged from bankruptcy on 11 April 2011.

 

  1. The Applicants have produced a copy of a Report to the Respondent's creditors dated May 2009 which was prepared in relation to the Respondent's failed individual voluntary arrangement. The report includes a section headed "Asset Realisations" and includes the statement that "The Debtor sold his sheep and the sum of £2,962.90 was realised." The Report does not state the date when the Respondent sold his sheep but the individual voluntary arrangement was established on 13 December 2005. The Report makes no mention of any sheep being retained by the Respondent.

 

  1. The Respondent has disclosed a copy of an application made to the Rural Payments Agency in May 2008 in respect of the "Single Payment Scheme 2008". A plan attached to this application shows that the national grid field number 9517 that the application related to is co-extensive with the Land. A letter from Sunderlands & Thompsons Chartered Surveyors dated 24 July 2013 addressed to the Respondent stated that they prepared single farm payment applications for the Respondent in respect of national field grid number 9517 "in respect of your claim as occupier from 2009 through to and including 2011. You subsequently sold the entitlements".

 

  1. I have been provided with a number of documents relating to different land adjoining Bodenham wastewater treatment works. The Respondent wrote to a Mr Thomas at Welsh Water on 12 May 2011 stating in relation to this land that "I have been in possession of the above field for 13 years, since Fred Arrowsmith vacated it, therefore, it is now my property."

 

  1. Mr Thomas replied that grazing licences had been issued in respect of this land to Mr Arrowsmith until 2003 and thereafter to a Mr B Gibbs until 31 st January 2004. Accordingly Welsh Water disputed the Respondent's claim to have been in possession since 1998. Welsh Water's lawyers Geldards LLP wrote to the Respondent on 8 July 2011 threatening the issue of proceedings and Welsh Water's documents indicate that the Respondent removed his sheep from the land later in July 2011.

 

  1. The Respondent has disclosed a letter dated 19 August 2013 from Ms Sasha Norris addressed to him and stating "I hope its ok to rent paddock by Bodenham Lakes Reserve for £10 per week from 19/Aug for 3 weeks". This document post-dates registration of the Respondent's possessory title and it therefore does not assist me in determining the issues before me.

 

  1. The Respondent has produced a letter from the British Cattle Movement Service dated 21 January 2014. This states that the UK flock mark was compulsory for eartags in sheep and goats born after 9 January 2005. The letter encloses copies of the relevant legislation. The Respondent produced these documents because he had requested that the Applicants disclose evidence from Mr Pattison of the UK identification code for his sheep and the individual numbers issued to his sheep from 2005 onwards. The Respondent states that the identification code for his sheep was UK0301255 and that he was issued with individual tag numbers 00001 to 00650 since this regime came into force. The Respondent accepts that he kept sheep at a number of different locations.

 

  1. The Applicants have provided a 17 page print out which they state show the Respondent's flock over the years. Neither party referred to this document in their evidence or placed any reliance on it in their submissions.

 

The Police File

 

  1. As described above a police investigation was carried out into the allegations made by Mr Watson about the Respondent and by the Respondent in relation to the trial bundle that he reported missing from his home on 16 April 2015.

 

  1. On 11 December the Respondent wrote to the Tribunal stating that he understood that the investigating officer Detective Constable Shaw had provided a report of his investigations of Mr Watson's allegations to the Tribunal. As nothing had been received by the Tribunal the parties were informed that this was the case by email on 23 December 2015. The parties were informed that if such a report became available they would be informed and given the opportunity to address the Tribunal.

 

  1. On 11 January 2011, on the morning of the first day of the adjourned hearing, I was presented with a lever arch file containing documents provided by the investigating officer ("the police file") that had been sent to the hearing venue. I ascertained from the investigating officer whether the file included any documents that the parties were not entitled to see as of right. I was informed that it did not. At the commencement of the adjourned hearing I informed the parties of the existence of the police file and heard submissions from them about how to proceed. I explained that with very limited exceptions a civil court would not have regard to documents that were not also available to the parties.

 

  1. The parties were in agreement that the police file should be copied and provided to them for them to consider and to make representations in respect of. This was arranged and the hearing was later adjourned to the following day to ensure that the parties had a full opportunity to consider the content of the police file and to make such use of it as they considered appropriate in their questioning of witnesses and submissions. Unfortunately later the same day I was informed by the court that a few of the documents included in the police file were not ones that would have been available to the parties to see as of right. These documents were returned by the parties on 12 January and were not referred to in evidence. I have paid no regard to them in reaching my conclusions.

 

  1. The police file contains a lot of material which is not relevant to the issues I have to determine. It also includes many of the documents that were previously before me in these proceedings. Insofar as the file contains expressions of opinion about matters I remind myself that it is for me to form my own views about the issues that arise in respect of the Reference on the basis of all of the admissible evidence before me. I also remind myself that, with the exception of the witnesses mentioned later in this judgment, I have not heard evidence from the individuals who gave statements contained in the police file or who are referred to therein.

 

  1. The police file confirms that the Respondent was arrested and interviewed by them on suspicion of perverting the course of justice. The police file also confirms that it was decided that there was no public interest in pursuing the allegations further.

 

  1. In my view the following matters referred to in the police file are of some relevance to my determinations:

 

74.1   Both the Respondent and Mr Watson maintained their respective allegations against each other during their dealings the police;

74.2   The Respondent is recorded as having told the police that he paid Mr Watson in cash when he worked for him and that it was "too late now for the tax man to come after him";

74.3   In relation to obtaining handwriting evidence the Police Memo Report states that the Respondent had informed the police that he had permission to obtain a handwriting expert report from the Tribunal but that "he didn't realize that it was such a big job to get handwriting experts";

74.4   Michael Leighton provided a statement to the police confirming that he attended court on 22 April 2005 but denying that he had told Mr Watson that he had been offered money to give evidence on behalf of the Respondent;

74.5   Janet Mitchell, Michael Stephens, Ian Linton and Barry Gyte were all contacted by the police and are all reported as having confirmed that they were aware of the statements provided to the Tribunal by the Respondent and they had read and signed these statements;

74.6   Ms Amanda Solomon, the Respondent's cleaner, told the police that she disagreed with part of a draft witness statement prepared for her by the Respondent and had not agreed to provide a statement for the Respondent but had only discussed doing so at the time she was interviewed by the police.

 

Witness statements and Statutory Declarations

 

  1. I note that in his LRHRG Form provided to the Tribunal the Respondent stated that he would call 12 witnesses at the hearing including himself. As I discuss below, in the event he called four other witnesses to give oral evidence as well as himself. The Applicants called two witnesses to give oral evidence, one of whom was Mr Adam Phillips, who is one of the Applicants.

 

  1. I summarised below the relevant parts of the witness statements, statutory declarations and letters that the parties seek to rely on in respect of witnesses who did not attend to give oral evidence. I discuss the weight to be given to this untested evidence later in his Decision. In many cases the document relied on as comprising the individual's evidence does not comply with the Tribunal's requirements and where this is the case I have stated this below. In two cases the statement provided was so wholly non-compliant that I have not had any regard to the document provided.

 

  1. The Applicants seek to rely on statutory declarations, witness statements and letters from a number of witnesses who did not attend court to give evidence. In particular they rely on the statutory declaration of Mr Sydney Pattison dated 8 August 2014. His statutory declaration is somewhat difficult to follow in places. He states that he has lived in Bodenham since 1965 in a bungalow that is 50 yards from the Land. He states that his user of the field for grazing sheep commenced before the late Mr and Mrs Phillips purchased The Hollies. Their predecessor in title was a Mr Weyman-Jones, a former employer of Mr Pattison. Mr Pattison states that he was allowed to use the Land provided he tended to Mr Weyman-Jones' garden.

 

  1. Mr Pattison states that this arrangement continued once Mr and Mrs Phillips became owners of The Hollies as they did not wish to use the Land. Mr Pattison's statutory declaration states that he continued to keep his sheep on the Land and that he used to mow the lawns and rotovate the garden at The Hollies. Mr Pattison states that his wife had a conversation with Mrs Phillips before she died. His evidence is that his wife was told by Mrs Phillips that Mr Pattison could remain on the Land until her sons wanted the Land.

 

  1. Mr Pattison states that each year his sheep were on the Land from July to February intermittently. As the sheep needed fresh grass the sheep were moved from the Land to other locations. He did not keep sheep on the Land between April and July to allow for haymaking. Mr Pattison says he last made hay on the Land in 2007. Mr Pattison states that he grazed about 25 cross-bred Suffolk sheep and a tup. Mr Pattison says that he sold the last of his flock in 2009 and that thereafter he grew flowers in flowerpots on the Land for a period.

 

  1. Mr Pattison says that he was aware of a pony on the Land from time to time but he did not know who it belonged to. He states that he refused a request from a lady who resided "in one of the cottages" to rent the field.

 

  1. Mr Pattison states that he knew the Respondent through his work with Mr Wegman-Jones. He relates an incident which he appears to date to 2007 when he saw that the Respondent had placed his sheep on the Land. He states that on this occasion the Respondent told him that he had purchased the Land and that he was to "clear off".

 

  1. Given the significance of his evidence to these proceedings I asked the Applicants why they had not called Mr Pattison to give oral evidence at the hearing. I was informed at the 22 April 2015 hearing that Mr Pattison was in his 80s and was in poor health and that the Applicants considered it was inappropriate to call him.

 

  1. The Applicants also rely on a statutory declaration made by Ms Suzanne Evans dated 7 August 2014. She states that she has lived in a row of cottages directly opposite the Land since August 2008. She states that one of her neighbours had told her that she had spoken to Mr Pattison about putting horses on the Land but Mr Pattison had said that he did not want horses on the Land.

 

  1. Ms Evans states that sometime after her arrival in Bodenham the Respondent began to put sheep in on the Land even though the fences were not stock proof and Ms Evans had to contact him to get him to recover his animals. Ms Evans states that she asked the Respondent who owned the field but "he would only suggest that I contact Mr Pattison". Mrs Evans describes the Land as being in a "dreadful state" when she arrived in Bodenham as there were plastic flower pots and general rubbish on the land. She understood the plastic flower pots to belong to Mr Pattison.

 

  1. Ms Evans states that the Respondent cut down a hedge at the edge of the Land and replaced it with a fence. A fire was started to burn the plastic pots and rubbish on the site but Ms Evans states that the Respondent also brought in trailer loads of green waste from elsewhere and she formed the view that this was fly tipping. She states that she has only once seen the Respondent attend to the field when he carried out some nettle spraying. Ms Evans stated that in 2013 she had tried to purchase the Land via a third party but was told that the owner would not sell because of the possibility of gaining planning permission to build on the Land in the future.

 

  1. A brief letter that is signed and dated 25 August 2013 but does not have a statement of truth is also relied on by the Applicants. It is said to be from Ms Evelyn McNeil, who I understand purchased The Hollies at some time after Mrs Phillips ceased to reside there. She states that she lived at The Hollies for "about ten years" but does not give dates. She says that during this period she did not witness anyone carrying out maintenance or tending to the Land in any way. She also states that the Respondent had tried to make claim to other land that she owned.

 

  1. The Applicants also rely on a letter dated 25 June 2013 which is stated to be made by the then current owners of three of the Bodenham Cottages that overlook the Land. The letter has signatures and the apparent makers include Ms Evans whose statutory declaration is referred to above. The letter includes a form of statement of truth. This letter states that in 2006/7 the Land "had not been used for many years prior" and was very overgrown with unkempt hedges and fences in disrepair. Drainage works were carried out for the benefit of Bodenham Cottages in 2008 and at this stage there were no livestock on the Land. The letter states that it was in mid-2010 that the Respondent began using the Land to graze his sheep. Thereafter the letter states that the Respondent replaced a broken fence, trimmed hedges, removed trees and burnt or removed rubbish on the Land.

 

  1. The Applicants also rely on an email from Mr Michael Thomas of Welsh Water dated 16 September 2013. This email is not supported by a statement of truth and principally refers to the documents that have been summarised above. On 7 January 2016 the Applicants sent to the Tribunal an email from Mr Michael Thomas of Welsh Water stating that he had intended to attend the adjourned hearing on 11 January 2016 to give evidence but was now unable to do so due to work commitments.

 

  1. The Applicants also disclosed an undated and unsigned letter from someone who only identifies herself as "Lynn" which lacks a statement of truth. Given the complete failure to comply with any of the basic requirements of a witness statement I do not place any reliance on the content of this letter.

 

  1. The Respondent also seeks to rely on statutory declarations, witness statements and letters from a number of witnesses who did not attend court to give evidence. Mrs Janet Mitchell, whose husband did give oral evidence at the hearing, made a statutory declaration on 29 September which is in exactly the same terms as that of her husband, whose evidence is considered below. Mrs Mitchell is also referred to as Janet Ballinger.

 

  1. A Mr Leslie Bowen made a statutory declaration dated 21 January 2015. He does not live in Bodenham but in Whitney on Wye, more than 20 miles from the Land. He states that he has known the Respondent for twenty years and that he got married in 2001. That year he was given a ewe lamb as a wedding present and he remembers seeing the ewe lamb for the first time "at a little field on the left of the road down to Bodenham Gravel pits." He describes the Land as being "a terrible mess at the time." Mr Bowen states that he was paid to renew a fence on the Land "6 or 7 years ago" and thereafter cut down trees in the roadside hedge to stake height and rewired the netting alongside the same hedge. He states that since his wedding in 2001 he had "seen John's sheep in the field on numerous occasions, and have always considered him the sole occupier of the field".

 

  1. Mr Kenneth Hodnet made a statutory declaration dated 24 January 2015. He also does not live in Bodenham but in Presteign, which is also more than 20 miles away from the Land. He states that he recalls purchasing six Texel rams from the Respondent and picking them up from what he describes as "a very unkempt field on the left of a driveway to Bodenham Lakes." He states that this was in 2001, the year of the foot and mouth epidemic. He states that he has purchased further rams from the Respondent "most years since" and that "quite often they have been in the same field". Mr Hodnet, who is stated to have been 89 years old at the time he made his statutory declaration, recalls receiving an upsetting call from a woman in the autumn of 2014 asking to see movement records concerning his rams.

 

  1. Mr Michael Leighton, who has already been mentioned in the summary of the content of the police file above, gave a statutory declaration dated 21 January 2015. Mr Leighton does not give his address but states that he worked for the Respondent between 1997 and 2007. He states that in the foot and mouth epidemic, the year of which he could not recall, he remembered taking hay to sheep "in a little field on the left of the drive down to Bodenham gravel pits". He states that "Lea Watson", a man called Brian and "a man from Bodenham called Sid who seemed to know a lot about sheep" worked for the Respondent "at the time". He states that "John kept sheep on that field all the remainder of the time I worked for him and as far as I knew, he was the sole occupant of the field."

  1. The Respondent seeks to rely on a brief signed statement of a Mr Michael Stephens dated 5 January 2014. This statement does not contain a statement of truth. According to the statement Mr Stephens lives in Bodenham and worked one day a week at The Hollies carrying out gardening work. The statement sets out that Mr Stephens recalls mule cross sheep belonging to "Mr Paterson" being on the adjoining field to The Hollies but from 2001 onwards he recalls the same field being grazed by Texel sheep which "for most of the time" belonged to the Respondent. According to the statement Mr Stephens is a countryman and can recognise sheep breeds including "big and powerful" Texel sheep.

 

  1. Mr Ian Linton made a statutory declaration dated 27 January 2015. Mr Linton lives in Bodenham and states that at the Respondent's request he sprayed weeds in "the field to the west of the Hollies" on at least two occasions . According to the statutory declaration he thinks that the spraying took place before 2010 and that there would have been an interval of at least two years between each spraying. The statutory decoration states that the Respondent hired a self-propelled loader from Mr Linton "when he had the roadside hedge cut down a few years ago".

  1. A statement from a Mr Roger Duggan is signed and dated 8 August 2013 but it does not contain a statement of truth. It only refers to a single visit in September 2008 to "a little field to the left of the driveway down to Bodenham Lakes that John was occupying at the time."

 

  1. A manuscript letter dated 13 January 2014 is signed by a Mr Sean Alakija. It states that he resided at the Coach House in Bodenham, the property owned by Mrs Janet Mitchell, from 2003-2008. He states that the Coach House is "opposite the field in question." He states that "there were sheep in the field most of that time and as far as I am aware they were the property" of the Respondent. Mr Alakija contacted the Respondent when sheep had escaped from the field he describes.

 

  1. A signed statement dated 17 January 2014 has been provided from a Mr Jonathan Hanson. This records just two visits to "a little field on the left of the road down to what used to be Bodenham sand and gravel pits". He states that the first visit was in 2001 "the year of the foot and mouth disease epidemic" when he noted the field he describes was "very overgrown with weeds". He does not state when his second visit to the field he describes occurred but he states that the field "looked for a better managed" on this visit.

  1. Mr Barry Gyte made a statutory declaration dated 1 February 2015. He states that he has lived in Bodenham since 2003 and the Respondent was the first person to speak to him "while I rode around the village on my bike". There is no information in the statement about Mr Gyte's age at the time. He states that he met the Respondent "tending his sheep in the little field on the left of the road down to Bodenham Lakes". He also states that he would pass this field on most days as it was close to his home and the Respondent was "the only occupier of the field, as far as I knew, and I never saw anybody else in the field other than people helping John".

 

  1. A signed statement of Ms Tina Thomas dated 21 December 2013 does not contain a statement of truth. It states that Ms Thomas did occasional work for the Respondent in Bodenham in approximately 2005/6. She relates one occasion when she went with the Respondent to "a field on the left of the drive down to Bodenham Lakes" to round up some of the Respondent's sheep.

 

  1. In a statutory declaration dated 23 January 2015 Mr Garth Price states that he is a contract sheep shearer and that "at least ten years ago" he went to a "a little field in the old part of Bodenham, on the left of the road down to the lakes" to carry out sheep shearing for the Respondent. He also states that he has "shorn sheep in that field since and have gone there with John to collect sheep for shearing. I have always assumed that John was the sole occupier of this field."

 

  1. Prior to the 11 January hearing the Respondent produced an unsigned copy of a statutory declaration from his cleaner Ms Solomon. The Respondent initially indicated that she would attend to give evidence but in the event she did not do so and the Tribunal has not received a signed statutory declaration from her. In the circumstances and in view of the content of her statement in the police file summarised above I have no regard to the content of the unsigned statutory declaration.


The Oral Evidence

 

  1. I heard oral evidence from four witnesses, Mr Darren Roberts, Mr Graham Mitchell, Ms Judith Mabe and Mr Brian Watts, on 22 April 2015 and for convenience I will deal with their evidence first. All of these witnesses were called by the Respondent and were heard before witnesses for the Applicant at the Respondent's request and with the agreement of the Applicants.

 

  1. Darren Roberts - Mr Darren Roberts was called by the Respondent and confirmed that the content of his 20 January 2015 statutory declaration was correct. In examination in chief he confirmed that he knew a number of the individuals who the Respondent had served statements or statutory declarations from. He stated that Mr Linton, Mr Bowen and Mr Leighton did not want to come to court because of nervousness or to avoid repercussions. Mr Roberts' evidence was limited to events from 2008 onwards.

 

  1. In his statutory declaration Mr Roberts stated that since 2008 he had helped the Respondent with his sheep at weekends and in the evenings. He stated that the Respondent had kept sheep in "the roadside field west of "The Hollies" in Bodenham" since he had worked for the Respondent.

 

  1. Mr Roberts states in his statutory declaration that he had been paid by the Respondent to reduce the height of the roadside hedge. He also disputes the account given in the letter dated 25 June 2013 by some of the occupants of Bodenham Cottages that there were no sheep on the Land in 2008 when drainage works were carried out. In evidence he stated that he remembers manoeuvring a trailer over a drainage trench that was on the Land in order to deliver sheep to the Land.

 

  1. In cross-examination he stated that there were sheep on the Land continuously but in response to my questions he stated that although he drove past the Land most days for the last 8 years he could not say that he had seen sheep on the Land continuously. He told me that he thought that there had been sheep on the Land throughout but that this was an assumption on his part and he could not say whether this was actually the case.

 

  1. In his statutory declaration and in his evidence at the hearing Mr Roberts referred to being with the Respondent when Mr Pattison shouted at the Respondent and told him to remove his sheep from the Land as "they were going to renew the fence down to the gravel pits". Mr Roberts stated in evidence that this altercation took place in 2008 or 2009.

 

  1. Mr Roberts was cross-examined about this altercation and it was put to him that it was inconsistent with the Respondent having exclusive possession of the Land for Mr Pattison to be telling the Respondent to remove his sheep from the land and Mr Pattison to be talking about renewing a fence on the Land. Mr Roberts' response was that he had "just assumed that it was Mr Vaughan's field all along and that he didn't understand what Mr Pattison telling Mr Vaughan to move his sheep was all about."

 

  1. Mr Roberts confirmed that he had not been offered any money to attend the hearing. I accept Mr Roberts' evidence in this respect and I found him to be candid in admitting that he could not support his statement that he knew that the Respondents' sheep had been on the Land continuously since 2008. I also accept his evidence that trench works were being carried out by third parties to the land in 2008 and that about this time Mr Pattison told the Respondent to remove his sheep from the Land as fencing work was to be carried out.

 

  1. Graham Mitchell - Mr Graham Mitchell confirmed the content of his statutory declaration dated 29 September 2014 with one exception. He stated that he now remembered that work carried out by the Respondent to sycamore trees on the Land took place later than suggested in his statutory declaration. It did not take place when the Respondent first started to use the Land.

 

  1. Mr Mitchell lives in Marden, Herefordshire, but stated that his wife Janet Mitchell owned a property known as The Coach House which is situated opposite to the Land. Mr Mitchell and his wife have not lived at The Coach House during the relevant period but it has been let to various people including Mr Alakija whose letter is referred to above. Mr Mitchell stated that he and his wife looked after the garden of The Coach House even when it was rented and therefore visited Bodenham frequently for this purpose.

 

  1. Mr Mitchell was aware that the Land belonged to the Phillips family and he had known the late Mr David Phillips. Mr Mitchell stated that before the Respondent dealt with the sycamore trees they placed the Coach House in shade and he had unsuccessfully tried to trace a member of the Phillips family to get them to deal with them.

 

  1. Mr Mitchell's statutory declaration states that he recalled the Respondent moving sheep from land that he had rented from Mrs Mitchell at the Coach House orchard to the Land in late 2000 at the time of the foot and mouth outbreak. However when questioned Mr Mitchell accepted that the dates in his statement could be "all over the place". Mr Mitchell explained that he was 71 and was trying to recall events from some time ago but that he was confident that the Respondent had moved sheep onto the Land at the time of the foot and mouth outbreak.

 

  1. Mr Mitchell stated that he could not recall ever seeing the Respondent on the Land but had seen him in Bodenham. He had occasionally had conversations with the Respondent about the Land in which the Respondent had told him that "he was trying to get the Phillips' land". Mr Mitchell stated that he considered that the Respondent was "trying his luck. No one else was laying claim to the land so he had an eye to it."

 

  1. Mr Mitchell was questioned about the sheep he saw on the Land. It was suggested to him that these may have been Mr Pattison's sheep and not those of the Respondent. He stated that the sheep he recalls seeing were Texel sheep which were distinctive in appearance. However he accepted that "they could have been Sydney Pattison's sheep. I am not a farmer." Mr Mitchell's evidence was that his belief was that it was the Respondent's animals that were occupying the land and that he was not aware of anyone else's animals on the land at this time.

 

  1. Mr Mitchell laughed off the suggestion that he might have been offered payment to attend the hearing. I formed the impression that Mr Mitchell was an honest witness who was trying his best to assist the court but who was candid about the limits of his recollection in relation to timings and in relation to his assumptions about the ownership of sheep on the land.

 

  1. Judith Mabe - I also heard evidence from Ms Judith Mabe who was formerly in a relationship with the Respondent. Her evidence mainly dealt with the period 2004-2010 although she stated that she had made some visits to the Land subsequently but not since 2013/3. She confirmed the content of her 21 January 2015 statutory declaration with the exception that she considered that the phrase "common looking sheep" in paragraph 7 was not one that she would have used. She explained that the Respondent had prepared the statutory declaration and that with the benefit of hindsight she should have drafted the statutory declaration herself.

 

  1. Ms Mabe lives in Allensmore, Herefordshire, more than 10 miles from Bodenham. She stated that shortly before her sixtieth birthday in 2004 she became reacquainted with the Respondent, who knew her mother, and began helping him with his sheep that were kept in a number of locations including on the Land. She stated that the Land was in a terrible mess in 2004 and that since then the Respondent had "tidied it up considerably". She stated that she came to see the Respondent a few times a week at this time.

 

  1. Ms Mabe considered that the sheep she saw on the Land were the Respondent's sheep as they were Texel sheep. She states in her statutory declaration that " I do not know much about sheep" but knew that Texel sheep were far bigger and stronger than "your average sheep". She stated that "she was pretty sure" that all of the sheep she saw on the Land were Texels as there were usually on 10-12 sheep on the Land.

 

  1. Ms Mabe was questioned about why she did not disclose in her statutory declaration that she had been in a relationship with the Respondent during the majority of the period covered in her statutory declaration. She rightly accepted that it would have been better if this had been stated in the statutory declaration but she was frank about the existence of the relationship in her oral evidence and I do not consider that her omission to mention the relationship earlier indicates that she was not an honest witness trying to recall events as well as she was able. I find that it is likely, however, that her recollection of events is likely to have been influenced by what she was told about the Land by the Respondent at the time and subsequently.

 

  1. Brian Watts - Mr Brian Watts confirmed the content of his statutory declaration dated 21 January 2015. Mr Watts lives in Leominster and is a general farm worker specialising in sheep and hedge laying. His evidence in his statutory declaration related to a single visit in 2001 to the Land . Mr Watts' statutory declaration states that he and the Respondent delivered the majority of sheep being transported to other land but took the mothers of two lambs who had suffocated in transit to the Land. He also states that he remembers Mr Pattison telling him how pleased he was to have got rid of his sheep before the foot and mouth outbreak.

 

  1. Mr Watts appeared very uncomfortable in giving his oral evidence despite attempts to reassure him. He gave an account of why part of his address was missing from his type-written statutory declaration which was very difficult to follow. He was clear that he had not been offered any money to attend the hearing but was otherwise faltering and anxious in giving his evidence and frequently looked to the Respondent during his evidence.

 

  1. Mr Watts stated that he had ceased working for the Respondent in 2003 but had been in the vicinity of the Land very irregularly since then. He accepted that his understanding that any Texel sheep on the land belonged to the Respondent was his assumption and he had no knowledge of whether Mr Pattison or anyone else may have purchased such sheep.

 

  1. On 12 January 2016 I heard evidence from Mr Lee Watson, Mr Adam Phillips and the Respondent.

 

  1. Lee Watson - Mr Lee Watson was called by the Applicants. He confirmed that the content of his 8 April 2015 letter were true (the letter itself containing a statement of truth). This letter included the statement that "Mr Vaughan has not been in the field since 2000-2001 and only used it occasionally with the permission of Mr Pattison; this didn't start until the middle of 2006."

 

  1. Mr Watson stated that his first name was correctly spelt "Lee" and not "Lea" as set out in the documents provided by the Respondent. Mr Watson stated that he had formerly lived at 75 Belmont Avenue, the address set out on the statement and statutory declaration in the name of Lea Watson filed by the Respondent. However Mr Watson stated that he had not lived there since approximately 2005 and had not lived there for a number of years by the dates, 2013 and 2015 respectively, of the Lea Watson statement and statutory declaration submitted to the Tribunal by the Respondent.

 

  1. Mr Watson stated that the Respondent would have known the Belmont Avenue address because the Respondent had employed him full time between approximately 2000 and 2007 and part-time until approximately 2009. Mr Watson says that during this period he worked with another man Gerald and they were paid by the Respondent mainly in cheques made out to the Respondent that they enchased at Cash Generators.

 

  1. Mr Watson's evidence was that he worked on other land occupied by the Respondent where potatoes and sweetcorn were grown. In his oral evidence Mr Watson said that he was familiar with the Land before 2006 because he would travel past it with the Respondent and that the Respondent would sometimes speak with Mr Pattison. He described Mr Pattison as being the man who "looked after the fields by the lake" including the Land. He recalls that Mr Pattison had 3-4 trailers on the land and some sheep prior to 2006 and that he understood that Mr Pattison had permission from Mrs Phillips to use the land. Mr Watson also stated that he recalled seeing the late Mrs Phillips on or by the Land prior to her death.

 

  1. Mr Watson's evidence was that in 2006 the Respondent asked Mr Pattison if he could put some of his sheep on the Land and that Mr Pattison was upset at this request but agreed only on the basis that they would be there temporarily because Mr Pattison was looking after the Land for Mrs Phillips. Mr Watson said that Mr Pattison was maintaining the land.

 

  1. This evidence contrasts with the content of the Lea Watson documents filed by the Respondent. The statement dated 22 July 2013 states that Lea Watson worked for the Respondent from 2000-2003 and that the Respondent kept sheep on the Land and that they "could not be moved off ... for a long time when foot and mouth was about". The statutory declaration dated 21 January 2015 is similar and also states that Mr Pattison helped with the sheep. The statutory declaration states that at this time the Land was very overgrown with briars, thistles and nettles and the hedges were also overgrown.

 

  1. Mr Watson said that he had visited the Respondent's house in March 2015 after the Respondent contacted him by telephone. He assumed that the Respondent was going to offer him some work but instead he stated that the Respondent offered him £5,000 "and a party afterwards" to provide a statement in these proceedings. He says that the Respondent explained that he was trying to claim the field that Mr Pattison used to look after. Mr Watson's oral evidence was that he was asked by the Respondent to say that Mr Pattison initially allowed the Respondent onto the Land and that he used it thereafter. In his oral evidence Mr Watson recalled that he was asked to say that the Respondent was permitted to go on the field from 2006 onwards, which is later than the date set out in the Lea Watson statutory declaration and statement.

 

  1. Mr Watson said that he was told that all he had to do for the money was sign papers and that he would not need to come to court. He also said that the Respondent told him that he had also offered Mr Michael Leighton £5,000 "to come to court to lie for him". Mr Watson said that the Respondent told him that if he won the case he would sell the land and thought it would sell for between £100,000 and £220,000.

 

  1. Mr Watson says that his response was to tell the Respondent that "he would think about it as he did not want to get involved in anything like this". In answer to my question Mr Watson said that he said he would think about the Respondent's request as a means of getting out of the situation and that he had no intention of accepting the proposal. Mr Watson stated that he did not sign any statement on behalf of the Respondent.

 

  1. Mr Watson stated that he saw Mr Leighton at a furniture sale in March or April 2015 and Mr Leighton confirmed that he also had also been offered "£5,000 and a bit of a party" if he gave evidence for the Respondent. Mr Watson says that he next saw Mr Leighton at court on 22 April 2015 but that he left the court shortly after he saw that Mr Watson was present to give evidence.

 

  1. Mr Watson was questioned by the Respondent about the statement he gave to the police dated 20 April 2015 and it was put to him that he had given inconsistent accounts of how he had got in touch with Adam Phillips. In the 20 April 2015 statement Mr Watson stated that the contact was initiated by a Facebook message from a friend who was also called Adam who worked with Mr Adam Phillips. In the 8 April 2015 letter Mr Watson states that he contacted Adam Phillips by going to The Hollies and speaking to a lady who was able to obtain Adam Phillips' telephone number.

 

  1. Mr Watson's response was to say that the initial contact was through the lady at The Hollies but that the Facebook message also occurred as he lost Adam Phillips' telephone number after meeting him. The Facebook message was a means of re-establishing contact.

 

  1. The Respondent disputed that Mr Watson had worked full time for him but Mr Watson's evidence was that he had done so, although he clarified that in the agricultural context this meant that he worked for approximately 9 months of the year if he was also engaged for lambing and sheep shearing.

 

  1. Mr Watson repeated his statement to the police that the Respondent had threatened him and his partner because he was willing to give evidence for the Applicants in these proceedings.

 

  1. Mr Watson gave conflicting evidence as to whether Mr Pattison had worked for the Respondent. In his 8 April 2015 letter he said that Mr Pattison did "the odd bit of work" for the Respondent. On questioning he stated he would look at poorly sheep for the Respondent. However when it was put to Mr Watson that Mr Pattison's statutory declaration does not refer to working for the Respondent Mr Watson said that this part of the 8 April letter was wrong.

 

  1. Mr Watson was asked about his signature at length. He denied that he signed either of the documents submitted by the Respondent in the name of "Lea Watson". In response to my questioning he accepted that his signature varied and that he sometimes signed documents with capital letters and sometimes with a combination of capitals and lower case. There are examples of both kinds of signature in the documents before me that Mr Watson accepts are his. Indeed Mr Watson signed two copies of his 8 April 2015 letter and he signed one using capital letters only and another using a mixture of cases.

 

  1. Mr Watson stated that he is dyslexic and experienced some difficulties writing. However he denied that he would misspell his own name or not recognise that his own name had been misspelt. I discuss my findings in relation to Mr Watson's evidence below.

 

  1. Adam Phillips - Mr Adam Phillips was the only one of the Applicants to give oral evidence. He confirmed that the content of his short letter dated 10 October 2013 were correct and that this was also the case for the statement he gave to the police dated 28 April 2015 that was included in the police file.

 

 

  1. Mr Phillips confirmed the statement made in his 2013 letter that he and his brothers would "fairly regularly check the field was ok and the gates were closed ...very rarely there would be sheep on the field" but when he saw sheep on the field he assumed that they belonged to Mr Pattison. Mr Phillips stated in his oral evidence that he personally would check on the field at least 3 times a month and that he had never seen the Respondent on the Land. He did not recall sheep being on the land in the winter of 2000/1. In response to questioning about why he checked the Land so frequently Mr Phillips stated that he did so when he was passing near the area and because he was aware that in the early 2000s someone from Whittington was sometimes keeping ponies on the Land without paying any fees for doing so.

 

  1. He stated in his letter and confirmed in his evidence to the Tribunal that following the death of his mother in 2006 Mr Pattison asked his permission to continue to use the field to graze his sheep occasionally and that he gave Mr Pattison that permission. It was put to Mr Phillips by the Respondent that he had not mentioned prior to 2015 that Mr Pattison had spoken to him in 2006 about permission to remain on the fields. However this line of questioning was not correct as Mr Phillips's 10 October 2013 letter mentions this conversation taking place in 2006.

 

  1. Mr Phillips did not agree with the Respondent's suggestion that the Land was "in a mess". It was put to him that this contradicted the statement made by his own witness Ms Evans who states in her statutory declaration that "when I arrived here the field was in a dreadful state". Mr Phillips did not agree with Ms Evans' description but on further questioning accepted that there were flower pots on the land that were kept there by Mr Pattison and that although they were generally stored under a tarpaulin some of them were loose on the fields.

 

  1. Mr Phillips stated that Me Evasn had not attended to give oral evidence because of work commitments. Mr Phillips stated that he had no knowledge of a woman telephoning some of the Respondent's witnesses and harassing them.

 

  1. Mr Phillips stated that he did not see that a fence had been replaced in 2008 but he did notice that hedges around the field had been trimmed in 2009 or 2010. He stated that he assumed that this had been done by Mr Pattison but that Mr Pattison was not easy to track down at times and it was not until later that he was told by Mr Pattison that it was the Respondent who had cut down trees and hedges and burnt Mr Pattison's flower pots and trailer.

 

  1. In relation to his first contact with Mr Watson, Mr Phillips stated that the position was as described by Mr Watson. Following their initial meeting Mr Phillips said that he did not lose Mr Watson's telephone number but he was unable to reach him by telephone and so asked a colleague to send Mr Watson a Facebook message. Mr Phillips did not accept that there was undue delay by him in only sending Mr Watson's 8 April 2015 statement to the Tribunal on the morning of the 17 April. Mr Phillips stated that he did not remember clearly but thought that 8 April may have been the day the text was drafted and not the day Mr Watson signed it.

 

  1. Mr Phillips denied that he was in conspiracy with Mr Watson to give false evidence to the Tribunal in order to defeat the Respondent's claim. He also stated that he did not believe that the Respondent's trial bundle had been stolen from his property as he alleged. I discuss my findings in relation to the evidence of Mr Phillips below.

 

  1. The Respondent - The Respondent was the final witness and he referred to six documents as containing his evidence in chief: a statutory declaration dated 8 March 2013; his further statutory declaration dated 27 January 2015; his original Statement of Case; his further Statements of Case dealing with his discharge from bankruptcy; his response to the 8 April 2014 statement from Mr Watson; and the police file record of his interview by the police. He confirmed that the content of these statements were true.

 

  1. The Respondent's evidence in his first statutory declaration is that a local sheep farmer, who the Respondent identified as Mr Pattison, sold all of his sheep in 1999/2000 and told the Respondent that "although he did not own the [Land] he had nevertheless previously used the [Land] to graze his own sheep without anyone objecting and (as he no longer had any sheep of his own - and as the [Land] was vacant) he suggested that I turn my sheep into the [Land] for grazing."

 

  1. In his first statutory declaration the Respondent states that it was shortly before foot and mouth movement restrictions were put in place in February 2001 that he first placed his sheep on the Land. He also states that "in recent years" he has locked the gate to the Land for security purposes. The Respondent states that since late 2000 or early 2001 he has used the Land continuously and without interruption to graze his sheep and that he has never seen anyone on the land apart from those whom he has authorised. He states that no one has ever claimed any right of ownership in respect of the [LAND]." In his first statement of case the Respondent also stated that "in the whole period of my adverse possession of the [Land] no one has ever challenged my right to be there."

 

  1. The Respondent states that "over the years" he has tidied up the Land and repaired and "more or less completely replaced" fences and maintained hedges on the boundary of the Land. The Respondent relies on the fact that he registered his occupation of the Land with the Rural Payments Agency in 2008 and claimed payments between 2008 and 2011.

 

  1. In his 27 January 2017 statutory declaration the Respondent states that at an unidentified time he "fitted a chain and lock for security" to the gate on the Land. It is in this document that the Respondent first makes reference to being told by Mr Pattison to "get the sheep off the field as they were going to renew the fence". The Respondent did not accept that this statement was inconsistent with his statement in his first statutory declaration that no one had ever challenged his rights of ownership of the Land. The Respondent states that as the fence renewal did not happen he later employed Mr Bowen to carry out this task. In this statutory declaration the Respondent alleges that Ms Evans stopped speaking to him in 2013 after he refused an offer she made to purchase the Land.

 

  1. In his Further Statement of Case dealing with Mr Watson's allegations the Respondent states that he typed out the 2013 Lea Watson short statement. He states that he cannot remember if Mr Watson told him how to spell his name but that he must have given the Respondent his address "and whether it was bogus or not I do not know." He states that Mr Watson did sign the 2013 statement and the 2015 statutory declaration.

 

  1. The Respondent's evidence was that Mr Watson turned up as his home "near the end of March" to "check his statement" and then stated that because he understood that the Land could be used for housing development "he would need £5,000 to come to court". The Respondent states that he "exploded when he said this but calmed down and told him of all the other witnesses I had and how it was illegal and that he might just find half a lamb on his doorstep come Christmas."

 

  1. The Respondent's Further Statement of Case states that Mr Watson attended his house again "to check his statement" and commented to the Respondent on the need to look after the original documents in his trial bundle. He states that Mr Watson asked about his movements that afternoon and then the following day the Respondent discovered that his trial bundle with original documents in it had gone missing.

 

  1. The Respondent states in his Further Statement of Case that he considers the signatures on the Lea Watson documents he submitted to the Tribunal to be the same as the examples of his non-capitalised signature before the Tribunal.

 

  1. There were a number of significant features of the Respondent's oral evidence on questioning. In relation to Mr Watson's employment with him he stated that he only paid Mr Watson in cash because Mr Watson was "on the dole" and would only accept cash payments. The Respondent accepted that he had been obliged to pay national insurance contributions on the payments made to Mr Watson and others but he did not do so, although he later suggested that they may not have earned enough for national insurance to be payable. He said that he paid in cash as he "wouldn't get workers otherwise". In response to my questions the Respondent accepted that he had not made any checks to see if national insurance should have been paid in relation to Mr Watson's earnings because it was "more important to get the crop picked".

 

  1. The Respondent was also asked why he did not immediately report to the police or the Tribunal the request he describes Mr Watson as having made for £5,000 at the end of March. His response was that he did mention this about a month later to the police in his interview and that he did not do anything else about it earlier because although Mr Watson made the request he seemed quite happy with the offer of half a lamb at Christmas and he thought that Mr Watson would therefore still attend to give evidence on his behalf.

 

  1. The Respondent was asked why the offer of half a lamb at Christmas was not an offer to provide Mr Watson with an improper inducement to give evidence on behalf of the Respondent. The Respondent said that he considered this offer was of something "very small" and he did not accept that he had acted improperly.

 

  1. The Respondent accepted in evidence that he entered onto the land with Mr Pattison's permission. In response to my question the Respondent stated that when Mr Pattison had told him to take his sheep off the land because of impending fencing works his understanding was that it was the local council that would carry out those works and not Mr Pattison.

 

  1. The Respondent was asked about his claim to the Welsh Water land I have previously described and in particular about the basis for his stating in correspondence with Welsh Water that he had occupied the relevant land for 13 years. In evidence the Respondent stated that at the time he could not remember he had been on that land for so he thought that he would "claim 13 years and see what they would say".

 

  1. When it was put to him that it was misleading to state in correspondence that he had been on the land for 13 years when he did not know whether this was the case his response was to say that "I wasn't under oath. I thought I would tell them it was 13 years. It was only the water board." The Respondent said that he had "chanced my arm" in trying to claim the Welsh Water land.

 

  1. The Respondent was asked to accept that the reason Mr Pattison was not in attendance at court in January 2016 was because he had been diagnosed with cancer, had lost a lot of weight and was unable to attend. The Respondent said he did accept this was the case and that the last time he had seen him he was mowing the lawn.

 

  1. I set out my conclusions in relation to the Respondent's evidence below.

 

 

 

 

Findings and Conclusions

 

 

  1. I have had regard to the written and oral submissions of the parties in reaching the conclusions I have set out below.

 

The disputed 2013 statement and 2015 statutory declaration of Lea Watson


  1. Given the seriousness of the allegations made by Mr Watson about the Respondent's conduct and the counter-allegations made by the Respondent against Mr Watson I will deal with these allegations first. In considering the allegations I remind myself that the standard of proof is on balance of probabilities and of the observations of Lord Hoffman in Secretary of State for the Home Department v Rehman [2001] UKHL 47 set out above.

 

  1. In this case I have been presented with two contradictory accounts which are mutually inconsistent. Mr Watson and the Respondent both accuse each other of seeking to mislead the court by presenting knowingly false evidence. After a careful consideration of all of the relevant evidence and having had the benefit of seeing Mr Watson and the Respondent give their evidence I find that Mr Watson did not sign or make the 2013 statement or the 2015 statutory declaration that the Respondent submitted to the Tribunal in the name of Lea Watson. I also find that the Respondent offered to pay Mr Watson £5,000 if he attended the hearing to give evidence on his behalf. I reach these conclusions on the balance of probabilities and without needing to rely on the burden of proof to reach my conclusions. My reasons for these findings are set out below.

 

  1. I accept Mr Watson's evidence, which was not effectively challenged, that he had not resided at the address stated in the 2013 statement and the 2015 statutory declaration for some years prior to date of those documents. Had those documents been drafted as a result of a discussion between Mr Watson and the Respondent it is highly likely that Mr Watson's correct address would have been given. The fact that former address of some years previously was used strongly suggests that Mr Watson was not involved in the preparation of these documents and that the Respondent used the last address that he was aware of for Mr Watson.

 

  1. The misspelling of Mr Watson's first name as "Lea" in both documents is also indicative that Mr Watson was not involved in their production. While I accept, and indeed it was evident to an extent during his testimony at the hearing, that Mr Watson has some difficulty reading, a mistake in the spelling of your own name within a very short document is difficult to miss once still less twice. I accept Mr Watson's evidence that he can spell and recognise his own name in a document without difficulty. Had Mr Watson seen and signed either the 2013 statement or the 2015 statutory declaration I am satisfied that he would have corrected this obvious error in at least one of them.

 

  1. I consider that the evidence relating to the behaviour of Mr Watson and the Respondent in March/April 2015 is consistent with Mr Watson giving a truthful account. Mr Watson describes how unhappy he was at discovering what the Respondent had done and the attempts he made to contact the documentary title holders of the Land. Mr Watson tried to contact them promptly after the Respondent made the offer to him and Mr Watson, who is not a party to the proceedings, has consistently maintained his central allegation against the Respondent since, attending the court on three occasions and also giving consistent statements to the police.

 

  1. In contrast the Respondent's version of events is unconvincing. He alleges that it was Mr Watson who requested £5,000 in order to give evidence on behalf of the Respondent. Had this happened it would obviously have struck anyone with an interest in the integrity of these proceedings as a serious matter. The Respondent's own evidence is that rather than report Mr Watson's conduct he offered him the alternative inducement of a half a lamb at Christmas and a party if he gave evidence on the Respondent's behalf. The Respondent seemed to regard this as a trivial matter but any offer of a reward for giving evidence is a serious matter as far as the Tribunal is concerned. I regard it as improbable that, had Mr Watson approached the Respondent for £5,000 in order to give evidence as alleged, he would have been satisfied with the reward that the Respondent said he offered. It was apparent during the course of the hearings before me that, rightly or wrongly, there was a widespread belief amongst those with knowledge of the Land that it may have significant development value.

 

  1. Further, the Respondent stated that after his discussion with Mr Watson he was content because he thought that Mr Watson would give evidence on his behalf because of the inducement offered. I do not see how the Respondent could have been content with evidence being given on his behalf by someone who had tried to extract a payment for doing so and who accepted an offer of a lesser inducement. I am satisfied that the Respondent's allegation that Mr Watson asked for £5,000 to give evidence is untrue and was only made after the Respondent was aware that Mr Watson had reported the Respondent's offer to pay him the same amount.

 

  1. The Respondent argues that there was no incentive for him to make such an offer as he already had a large number of witnesses who were willing to come to court to support his case. However of the witnesses who provided some form of statement for the Respondent three quarters did not attend to give evidence at the original or the adjourned hearing dates. Moreover, prior to the 22 April 2015 hearing the Respondent could not have had any certainty about how many witnesses would attend to give evidence on behalf of the Applicants. In the circumstances I am satisfied that the Respondent would have been keen to ensure that Mr Watson attended the Tribunal to support his case.

 

  1. It is correct that the Respondent reported the theft of his trial bundle from his house a day before he was aware that Mr Watson had informed the Applicants of the offer made by the Respondent. However I do not consider that this assists the Respondent. I accept the evidence of Mr Watson that the Respondent offered him £5,000 and that he told the Respondent that he would think about it. By 16 April the Respondent knew that the hearing was imminent and that Mr Watson had not agreed to give evidence his support. He may also have been aware that Mr Watson had spoken to Mr Leighton about the Respondent's offer and how he considered that it was dishonest. In the circumstances I consider that there was a clear reason for the Respondent to seek to undermine Mr Watson. The Respondent may also have thought that reporting him to the police may have influenced Mr Watson not to become involved in the proceedings.

  1. Given (i) the evidence in the documents before me that Mr Watson uses both upper case and mixed case signatures and (ii) the lack of handwriting expert evidence I do not reach my conclusion on the basis of the appearance of the signatures on the 2013 and 2015 Lea Watson documents. I also do not rely on the fact that Mr Leighton attended court briefly on 22 April 2015 but did not stay to give evidence. I am unable to reach a conclusion as to why he left court on the evidence before me.

 

  1. In reaching my conclusions in relation to the 2013 statement and the 2015 statutory declaration I also rely on the other evidence available to me that relates to the honesty of the Respondent and Mr Watson. The Respondent's own evidence about his dealings with Welsh Water in relation to the Bodenham wastewater treatment works clearly illustrates that he was willing to state things that he did not know to be true in order to obtain advantage for himself. The Respondent did not seem to think that there was anything wrong in his conduct and described it as just chancing his arm. I find that it was dishonest of the Respondent to represent that he had been on Welsh Water's land for 13 years when he did not know this to be the case. He did so in an attempt to support a claim to title that he was not entitled to make. His justification that "it was only the water board" was entirely unconvincing and demonstrated a willingness to put his own interests before the need to be truth.

 

  1. There was further evidence that the Respondent was willing to put his own interests above his legal obligations. He admitted that he had paid Mr Watson and other workers in cash and that he did not pay the national insurance that should have been paid on their earnings or, at the least, did not check to see whether he was obliged to make such payments. As an employer the Respondent knew that he was under such a legal duty but in his evidence he did not regard this as a significant matter and his attitude in his interview with the police was that it was "too late for the tax man to come after him now". The Respondent explained his failure by saying that he would not have been able to find workers otherwise but he was aware that this did not affect his legal obligations.

 

  1. While there is evidence of dishonesty on the part of the Respondent there is no similar evidence before me in relation to Mr Watson. The Respondent alleged that Mr Watson claimed benefits while working for him but he could not provide any corroboration for this allegation and Mr Watson's evidence was that he was mainly paid in cheques addressed to the Respondent for the Respondent's convenience. It might be said that Mr Watson should not have accepted payment in this way but the primary obligation to pay national insurance is on the employer.

 

  1. In assessing Mr Watson's evidence I take into account the fact that, as I have noted above, it contained some contradictions. Mr Watson was a somewhat nervous witness particularly when he was being questioned about documents that he sometimes appeared to be having difficulty reading. He stated in his oral evidence that the Respondent had asked him to state that the Respondent had entered onto the land with Mr Pattison's permission in 2006 whereas his 8 April 2015 letter stated that he had been asked to say that the Respondent had been on the field since 2000/2001. A request to say the latter would be consistent with the 2013 statement and 2015 statutory declaration tendered by the Respondent and I find that Mr Watson's evidence in his 8 April 2015 was accurate and his recollection on questing at the hearing was a product of his nervousness in the witness box.

 

  1. While Mr Watson's evidence contained some contradictions I remind myself that it is not unusual for witness evidence to include some inconsistencies particularly where they are somewhat nervous while giving their evidence. I formed the view that in giving his evidence Mr Watson was seeking to assist the court as best he could. In contrast the Respondent's evidence was characterised by a dismissive attitude to any evidence that was adverse to his position while he failed to recognise or accept that some of his admitted actions would cause any ground for concern even where it related to a previous attempt to gain title to land in which he had made a dishonest statement.

 

  1. Having stated my findings in relation to the 2013 statement and the 2015 statutory declaration I have to consider the effect of these findings on the other issues I have to determine. For the reasons I have set out above I have concluded that where there is a conflict between the evidence of Mr Watson and the Respondent I prefer the evidence of Mr Watson unless otherwise indicated. Having found the Respondent to have given dishonest evidence to the Tribunal in relation to the 2013 statement and the 2015 statutory declaration I must treat his evidence in relation to other matters that are in dispute with considerable caution but I remind myself that a witness who has been dishonest in some respects may still give truthful evidence about other matters, particularly where that evidence is corroborated by other witnesses.

 

  1. In considering the witnesses called by the Respondent I remind myself that a finding that the Respondent has been dishonest does not in any way suggest that the witnesses who he has called in support of his case were themselves dishonest. I have had the opportunity of hearing evidence from four witnesses called by the Respondent and I do not find any of them to be dishonest. I have assessed their evidence earlier in this Decision and comment on it further, where necessary, in relation to my findings.

 

  1. I must also consider how much weight to attach to the various forms of statement that are given by persons who did not attend to give evidence at the hearing. The fact that their evidence has not been subject to challenge by questioning means that I must attach significantly less weight to their evidence than to the evidence of the oral witnesses. In addition, having found that the Respondent has submitted statements to the Tribunal that were not made by their apparent maker I am concerned that there is a risk that this may be the case with some of the other statements provided by the Respondent. I am reassured that the police investigations revealed that Janet Mitchell, Michael Stephens, Ian Linton and Barry Gyte had all seen and signed their statements. However I have no way of knowing that the position is with the other statements relied on by the Respondent and in the circumstances I will attach less weight to the content of those statements.

 

  1. I set out my findings below in relation to the issues of factual possession, intention to possess and consent.

 

Factual Possession

 

  1. The first issue I have to determine is whether the Respondent was in factual possession of the Land for a 12 year period. I have set out the legal requirements of factual possession above. I accept that any witness will have difficulties remembering events over such a long period of time. I also remind myself that it is the nature of agricultural user that a field may only be used for part of the year and may be used at different times during the year for differing purposes. A field that is not secured may also be used by different users at differing times and may also be used by more than one user at the same time but for different purposes.

  1. Having considered all of the relevant evidence I find that there were periods where the Respondent was in occupation of the Land but that he cannot establish a 12 year period where he had factual possession of the Land. I set out my more detailed findings and reasons below.

 

  1. It is not disputed that the Respondent occupied the Land at times. There is, however, a dispute about when the Respondent first entered onto the Land and nature of his occupation during the claimed period. Looking first at the oral evidence, the Respondent says that he first entered into occupation of the Land in the winter 2000/1 at around the time of the foot and mouth outbreak.

 

  1. Two other witnesses called by the Respondent gave evidence relating to this period. Mr Watts could only speak to single visit in 2001 and thus his evidence is of limited assistance. As I noted above, he gave faltering evidence that was at times difficult to follow and he frequently looked to the Respondent while doing so. I accept that Mr Watts was an honest witness but I consider that very limited reliance can be placed on the accuracy of his recollection about when his single visit to the Land occurred.

 

  1. Mr Mitchell was confident that the Respondent had first placed sheep on the Land at the time of the foot and mouth outbreak in early 2001. However, he also accepted that his dates could be "all over the place" and he was candid about the difficulty of remembering dates accurately at this remove of time.

 

  1. Mr Watson's oral evidence was that although he worked for the Respondent from 2000 onwards the Respondent did not start to place sheep on the Land until 2006 when he was given a temporary permission by Mr Pattison to place some sheep on the Land. Mr Watson says that prior to this date the Land was occupied by Mr Pattison and that he saw Mr Pattison on the Land along with his sheep and trailers.

 

  1. Mr Adam Phillips' oral evidence was that he did not remember seeing sheep on the Land in the winter of 2000/1 and in general did not remember seeing many sheep on the field.

 

  1. There is more evidence contained in the various statements provided by individuals who did not give evidence. As explained above I attach significantly less weight to this untested evidence particularly in cases, such as the statements of Mr Bowen and Mr Hodnet, where the evidence relates to a single or infrequent visits to the Land. As I have set out above, when witnesses did attend to give evidence their recollections were significantly less clear than their witness statements suggest.

 

  1. There are none the less a number of statements that refer to the Respondent as having sheep on the Land at some time in the winter of 2000/1, the year of the foot and mouth outbreak. This evidence does supply some limited corroboration for the evidence of Mr Mitchell and the Respondent. On the balance of probabilities I find that the Respondent did place some sheep on the Land for at least some time during the winter of 2000/1. I find that this could have occurred for a period without Mr Watson's knowledge as Mr Watson worked for the Respondent at a number of locations.

 

  1. Although I accept that the Respondent placed some sheep on the Land in the winter of 2000/1, most likely as a temporary exigency arising from foot and mouth outbreak, I do not find that this was the start of a period in which the Respondent commenced continuous exclusive possession of the Land. In doing so I remind myself of the law set out in paragraphs 9-26 above. While it is not necessary for the Respondent to show that he had animals on the Land at all times in order to establish factual possession he does need to show that he had a sufficient degree of exclusive possession during the period claimed.

 

  1. I find on the balance of probabilities that the Respondent did not enjoy sufficient exclusive possession of the Land from 2001 onwards. Mr Mitchell's evidence was that he never saw the Respondent on the Land and that it was his assumption that the sheep he saw on the Land belonged to the Respondent. He accepted in evidence that "they could have been Sydney Pattison's sheep". Ms Mabe's evidence only covers the period from some point in 2004 onwards and while I accept her evidence that from then on she visited the Respondent frequently I remind myself that the Respondent kept his sheep at a number of locations not just on the Land.

 

  1. I should comment that in general I derived only limited assistance from evidence from witnesses who stated that they made assumptions about possession and ownership of the Land based on their opinion as to the variety of sheep that they remembered seeing on the Land. While Texel sheep may have a distinctive appearance as described by some of the witnesses all of the witnesses I heard evidence from apart from Mr Watson and the Respondent were not particularly knowledgeable about sheep. Mr Watson and the Respondent gave contradictory evidence about what kind of sheep were on the Land. While there is also written witness evidence on this point it has not been tested.

 

  1. I should also note that in general I was not assisted by the various and varying descriptions of the appearance and condition of the Land. Some witnesses describe the Land as being in a very poor condition in 2001 but state that it gradually improved thereafter. In contrast other witnesses say that Land was still in a very poor condition in 2006/7/8 while others say that the Land was in reasonable condition throughout. The assessment of the condition of the Land is very subjective and what may appear reasonable to a farmer may be considered very poor to a residential occupier. Unusually for a case of this nature no photographic evidence has been provided of the state of the Land. In the circumstances I am unable to infer use or lack of use of the Land at any particular time based on the widely varying descriptions of its condition and the lack of any other form of evidence against which to verify them.

 

  1. I accept the evidence of Mr Watson that for the years prior to approximately 2006 Mr Pattison was a significant occupant of the Land and that the Respondent did not exclude him from the Land. While Mr Watson was not aware of a period of occupation of the Land by the Respondent in 2000/1 I find that, having worked full time for the Respondent from approximately 2000 onwards and having frequently travelled past the Land during this period and overheard conversations between Mr Pattison and the Respondent, he was better placed than Ms Mace to know how the Land was being used and by whom.

 

  1. Mr Watson recalls Mr Pattison as the man who looked after the Land and recalls that he kept sheep and trailers on the Land in this period. Mr Watson's testimony is also supported by the oral testimony of Mr Adam Phillips. He gave evidence that in 2006 Mr Pattison asked for his permission to use the Land to continue. While I note that, like the Respondent, Mr Phillips has a vested interest in the outcome of the proceedings, I found Mr Phillips to be an honest witness. The Respondent did not succeed in identifying any inconsistencies in Mr Phillips' evidence and, if anything, managed to highlight that Mr Phillips has given a consistent account throughout.

 

  1. Having accepted Mr Phillips' evidence about his conversation with Mr Pattison in 2006 I find that this is strong evidence that Mr Pattison was in partial if not exclusive occupation of the Land in 2006. If he had stopped any use of the Land in 2000/1 as the Respondent alleges his request to be allowed to continue to use the Land is impossible to understand. I therefore prefer the evidence of Mr Phillips and Mr Watson on this point and do not accept the Respondent's evidence that he had exclusive possession of the Land from 2000/1 onwards. I accept that the Respondent has provided statement evidence in support of his contention as summarised earlier in this Decision but this evidence has not been tested and generally relates an understanding of user which does not encompass the whole relevant period, is based only on dealings with the Respondent and/or is based on assumption that user was always referable to the Respondent rather than someone else.

 

  1. I should emphasise that my finding that Mr Pattison was in partial if not exclusive possession of the Land up to 2006 does not equate to a finding that the Respondent did not place any of his sheep on the Land during this period. The Respondent's evidence was that he kept sheep in a number of locations and I accept that he may have placed sheep on the Land for periods when Mr Pattison had no or very few sheep on the Land. Mr Pattison states in his statutory declaration that his use of the Land for grazing sheep was intermittent. However this is does not approach being sufficient to show that the Respondent had exclusive possession of the Land at this time.

 

  1. I find that at some point after 2006, and it is difficult to be precise on the evidence available to me, the Respondent did become the only occupant of the Land. Mr Pattison's statutory declaration says that he sold the last of his sheep in 2009 but I have not had the opportunity to hear evidence from him and therefore can only place very limited reliance on the content of his statutory declaration.

 

  1. The Respondent criticised the Applicants for not disclosing Mr Pattison's UK identification code and records of his sheep ownership since 2005. These were not the Applicants' documents to produce and to that extent the criticism was unfair. However I take note of the fact that it may have been possible for Mr Pattison to provide details of his sheep ownership after 2005 and, for whatever reason, he has not provided these. Mr Phillips stated that he did not wish to get Mr Pattison further involved in the proceedings because of his ill health but the Respondent disputes that Mr Pattison is ill and I have no way of knowing about the state of his health.

 

  1. I note that the Respondent applied for payments in respect of his occupation of the Land in May 2008. I also note his evidence that "in recent years" he locked the gate into the Land. There is also evidence that from around 2006/7 he carried out substantial tasks consistent with exclusive possession such as renewing/replacing hedges and fencing and spraying the weeds on the land. Doing the best I can on the evidence available to me I find that it is likely that by some point in 2008 the Respondent had become the exclusive occupant of the Land. It was in 2008, according to Mr Roberts that the Respondent was told to remove his sheep from the Land by Mr Pattison. I find that this account is consistent with the Respondent having asserted such a degree of control over the Land by this time that Mr Pattison need to protest to him about it.

 

Intention to Possess & Consent

 

  1. Given my conclusion that the Respondent did not have sufficient exclusive possession of the Land in order to claim factual possession until 2008 it follows that the Applicant's title has not been extinguished and is superior to the Respondent's claim to possessory title. This conclusion is sufficient for the Application to close the Respondent's possessory title to succeed. I will none the less set out my conclusions below in relation to intention to possess and consent.

 

  1. Dealing first with the evidence, the Respondent's own evidence is that he was permitted by Mr Pattison to enter onto the Land in 2000/1. I am unable to accept some aspects of the Respondent's account of his conversation with Mr Pattison. The Respondent states that Mr Pattison had told him that he did not know who owned the Land but that he had used it without anyone objecting. This is contrary to the findings I have made above that Mr Pattison sought permission to use the Land in 2006 from Mr Adam Phillips and this was a continuation of the previous permission he had from the late Mrs Phillips. Accordingly I find that any conversation between Mr Pattison and the Respondent at this time would have not have been in the terms the Respondent describes.

 

  1. I note that Mr Pattison's statutory declaration does not describe any such conversation with the Respondent in 2000/1 but I have not heard evidence from Mr Pattison so I have not had the opportunity to assess his evidence. Mr Watson describes a similar conversation but the conversation he was aware of took place in 2006. I have found above that the Respondent did place some sheep on the Land for a period of time in 2000/1. Given that Mr Pattison was looking after the land for Mrs Phillips at this time I find that it is likely that there were some form of conversation between the Respondent and Mr Pattison about the Respondent using the Land on a temporary basis.

 

  1. I further find that in this conversation Mr Pattison would have explained that Mrs Phillips was the owner of the Land and that he was looking after it for her and that the Respondent entered onto the land on this basis. My conclusion is also supported by the evidence of the Respondent's witness Mr Mitchell who gave evidence that the Respondent told him that he was trying to "get the Phillips' land". I accept this aspect of Mr Mitchell's evidence which demonstrates that contrary to the content of the Respondent's original statutory declaration, he was aware of the identity of the owners of the Land.

 

  1. Applying those facts to the law set out above I find that in the initial period when the Respondent was let onto the Land he did not have an intention to exclude Mr Pattison from the Land as it was Mr Pattison who had given him permission to enter the Land and Mr Pattison was, as I have found, still a significant user of the Land at times.

 

  1. While this was the initial position I find that as time went on the Respondent did demonstrate an intention to exclusively possess the land. This is demonstrated not only from his acts consistent with exclusive possession from 2008 onwards described above but also from the evidence of Mr Mitchell that the Respondent told him that he was trying to obtain the Land for himself.

 

  1. In my view, on the facts of this case, the question of consent turns on the evidence I have set out above. The Respondent's initial entry onto the Land was pursuant to an agreement between the Respondent and Mr Pattison. I have accepted the evidence that Mr Pattison was "looking after" the Land for the Phillips family and in this respect he was their agent. I hold that an agreement with Mr Pattison was effective as an agreement between the Respondent and the documentary title owners for the Respondent to use the Land as authorised by Mr Pattison. I also hold that this consent ceased by no later than 2008 when I have found that Mr Pattison told the Respondent to remove his sheep from the Land.

 

  1. For completeness I should also deal with the fact that Applicants have raised the fact that the Respondent was declared bankrupt in 2007. As discussed in the summary of relevant law above, the Respondent's bankruptcy does not affect time running against a documentary title owner. However as I have found that the Applicants did not lose factual possession of the Land until some point in 2008 the 12 year period necessary to extinguish their title had not expired when the Respondent applied to register possessory title and still has not expired.

 

Alternative Conclusions

 

  1. As discussed above, by reason of s.11(7) of the 2002 Act I do not consider that the Applicants need to satisfy the requirements of Schedules 4 of the 2002 Act. If for any reason the requirements of Schedule 4 do apply to the circumstances of this case I would have no hesitation in finding that the closing of the Respondent's possessory title would be necessary to correct a mistake. As I have set out above, the documentary title owner's title has not been extinguished and it is the practice of the Land Registry not to register possessory title of a squatter in these circumstances.

 

  1. As the Respondent does not consent to the closure of his possessory title I find that it would be unjust for the closure of the title not to take place. I have found above that not only is the documentary title owner's title still in existence but that the Respondent had presented false statements to the Tribunal in support of his claim. In the circumstances it would clearly be unjust for the possessory title not to be closed. The Respondent has not identified any reason and I am also not aware of any exceptional circumstances which would justify not closing the possessory title in these circumstances. I reach these conclusions without having to rely on the burden of proof.

 

Costs

 

  1. At the hearing I informed the parties that following the determination of the issues raised by the reference the Tribunal would consider the question of costs based on written representations subject to consideration of any objection made by any party.

 

  1. The parties were informed in writing at the start of the proceedings the general rule in this Tribunal is that the losing party will pay the successful party's costs as well as his own. I have found that the Applicants have succeeded on their Application and the application of the general rule in this case would result in an order that the Respondent pay the Applicants' costs. This Tribunal has the power to make an award of costs to litigants in person on broadly the same principles as are used in court proceedings.

 

  1. I direct that the parties are to make written submissions on costs supported, where the party seeks an order for costs in its favour, by a Statement of Costs in form N260 (which can be easily obtained on the internet) or in substantially similar form. Copies of all submissions and Statements of costs are to be filed with the Tribunal office and served on the other parties. The submissions should address the incidence of costs including whether there are any reasons for departing from the general rule described above, the basis of the assessment (whether standard or indemnity) and the quantum of costs that should be awarded.
  2. I direct that the Applicants shall file their written submissions as to costs and any Statement of Costs by 29 March 2016.
  3. The Respondent is directed to file his written submissions as to costs and any Statement of Costs by 29 March 2016 The Applicants are to file any additional written submissions as to costs limited to commenting on the Respondent's submissions and any Respondent's Statement of Costs by 29 March 2016. The Tribunal will consider the materials received pursuant to these directions and issue a written determination on costs in due course.
  4. In the event that there is non-compliance with the directions given for the determination of costs the Tribunal gives notice that it may give a direction debarring the defaulting party from taking any further part in the determination of costs and proceed to determine the costs issues without further reference to the defaulting party.

 

 

By Order of the tribunal

 

 

dated THE 4TH day of MARCH 2016


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